Parker Johnson via Unsplash.com
Pictured: Hand holds a red “I Voted” sticker
By Patrick Roche
On October 14, 2018, the Associated Press outlined the plight of 53,000 citizens of Georgia, seventy percent of whom are African-American, who may fall prey to voter suppression for failing to properly register for the upcoming gubernatorial election.[1] Georgia law requires a voter’s driver license information to exactly match the information provided in the voter registration application for the purpose of preventing in person voter fraud.[2] This case, and others like it, support the assertion that voter identification (ID) laws not only impose undue burdens, but they may also signify violations of the Equal Protection Clause.[3] States nationwide should be able to devise a useable standard to prevent voter fraud while simultaneously avoiding voter suppression of minorities.[4] If our nation intends to eliminate voter suppression, the Supreme Court must remain willing to remedy such difficult questions in favor of the disenfranchised parties.
President Obama once said, “[O]ur right to vote is sacred,”[5] but this sacred right continues to face obstacles due to voter ID laws that former Attorney General Eric Holder once described as “poll taxes.”[6] Voter ID laws, like the enacted Indiana Senate Enrolled Act 483 and Texas Senate Bill 5, are implemented to prevent in person voter fraud at the expense of thousands of potential voters.[7] Voter ID laws do not, and cannot, explicitly target individuals of a particular race; however, the laws tend to affect minorities at a disproportionate rate, thereby having a similar effect to poll taxes that were prevalent prior to the Voting Rights Act of 1965 and the provision of power to the Attorney General to challenge these practices.[8]
In addition to its discriminatory impact, the reasoning behind voter ID legislation is dubious. In 2012, Texas convicted just six individuals for incidences of voter fraud that had occurred within the prior decade, and it simultaneously estimated that “605,000 to 795,000 registered voters do not currently have the ID required to vote.”[9] The prevention of in person voter fraud does not justify the burdensome and discriminatory qualifications imposed on minorities and indigent individuals.
To prove a voter ID law violates the Equal Protection Clause, a party must demonstrate the law’s intent to maliciously target a specific race or class of people.[10] The holding in Crawford v. Marion County Election Board is flawed because too little emphasis was placed on the actual injury incurred due to voter ID laws.[11] In his opinion, Justice Stevens refers to Harper v. Virginia State Board of Elections, in which the Supreme Court “concluded that a State ‘violates the Equal Protection Clause of the Fourteenth Amendment whenever it makes the affluence of the voter or payment of any fee an electoral standard.’”[12] Evidence suggests that obtaining the proper identification will cost a fee, thus seemingly violating the Equal Protection standard imposed in Harper.[13] Despite this information, inCrawford, the Supreme Court upheld a voter ID law that required eligible voters to provide photo identification.[14] Preventing eligible voters from exercising the use of their most powerful tool to influence the direction of government should receive more scrutiny, and the outcome ought to depend on the facts of the case.[15] Proof of incidences of in person voter fraud is scarce, so imposing such undue burdens that prohibit and discourage voting leads to greater injury than the potential injury these laws to prevent.[16]
Requiring voters to prove their identity is a reasonable request, but the requirements to do so should also be reasonable. There are several ways to prevent in person voter fraud and also limit the barriers that so easily strip citizens of their voting rights.[17] Photo identification is a surefire way to prove one’s identity. However, unfortunately, many minorities and indigent individuals lack the proper photo identification that many states require because these individuals cannot afford the proper identification, and in many cases the locations to receive such identification are not easily accessible.[18] Although still somewhat burdensome, some states permit individuals to sign sworn affidavits expressing their identity.[19] If a sworn statement is deficient, perhaps individuals can support their self-identifying statement with proof of residence or some further proof of identity.
The integrity of the campaign in Georgia is at stake due to the strict enforcement of voter ID laws and the disturbing fact that one candidate, Brian Kemp, is the current Secretary of State charged with overseeing state elections.[20] His challenger, Stacy Abrams, faces an uphill battle, and she is looking to become the first black woman to be elected governor in United States history.[21] The troubling allegations of voter suppression of minorities leveled against a candidate also charged with overseeing the integrity of the election should alarm all citizens. Unfortunately, given the current direction of the Supreme Court, minorities and indigent individuals are likely to face similar hurdles for the foreseeable future.[22]
[1] Bill Barrow, In Georgia, Claims of Vote Suppression and Publicity Stunts, Associated Press (Oct. 14, 2018), https://www.apnews.com/56239d657f1445dd8bf958b9acfa75bd.
[3] See Harper v. Virginia St. Bd. of Elections, 383 U.S. 663, 670 (1966) (holding a Virginia poll tax and further qualifications to vote unconstitutional); see also Veasey v. Abbott, 830 F.3d 216, 230 (5th Cir. 2016) (reversing the lower court’s decision that Texas’ voter ID law represented an unlawful poll tax, yet still recognizing the law’s discriminatory effect).
[4] Wendy Underhill, Voter Identification Requirements – Voter ID Laws, Nat’l Conference of State Legislatures (May 15, 2018), https://www.ncsl.org/research/elections-and-campaigns/voter-id.aspx.
[5] Barack Obama (@BarackObama), Twitter (Sept. 22, 2015, 8:52 AM), https://twitter.com/potus44/status/646351288964354049?lang=en.
[6] Amy Bingham, Voter ID Law: Poll Tax or Common Sense?, ABC News (July 12, 2012), https://abcnews.go.com/Politics/OTUS/voter-id-poll-tax-common-sense/story?id=16758232.
[7] S. 483, 114th Gen. Assemb., Reg. Sess. (Ind. 2005) (enacted); S. 5, 85th Leg., Reg. Sess. (Tex. 2017) (enacted).
[8] Voting Rights Act of 1965, 52 U.S.C. § 10301 (2018); see also Breedlove v. Suttles, 302 U.S. 277, 279-280 (1937) (outlining the past Supreme Court precedent that ignored outright discrimination in the context of poll taxes); Bingham, supra note 6.
[10] See, e.g., Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 253 (1977) (providing the framework to prove a violation of the Equal Protection Clause due to racially discriminatory intent); see also Veasey v. Abbott, 830 F.3d 216, 230 (5th Cir. 2016).
[11] See Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 189 (2008).
[12] See id. (quoting Harper v. Virginia State Bd. of Elec., 383 U.S. 663, 666 (1966)).
[13] See Keesha Gasking & Sundeep Iyer, Brennan Ctr. For Just., The Challenge of Obtaining Voter Identification 14 (July 29, 2012) (outlining the cost of obtaining photo identification).
[14] See Crawford, 553 U.S. at 181.
[15] See id.at 209 (Souter, J., dissenting).
[16] See id. at 236 (noting the lack of evidence the state provided to prove the effect of in person voter fraud).
[17] See Max Ehrenfreund, How to Stop Voter Fraud and Increase Turnout at The Same Time, Wash. Post (Nov. 4, 2014), https://www.washingtonpost.com/news/wonk/wp/2014/11/04/how-to-stop-voter-fraud-and-increase-turnout-at-the-same-time/?utm_term=.62a0993d36cb (providing viable alternatives to photo ID requirements).
[18] See Gasking, supra note 13, at 10-15 (noting the costs of photo identification and distances people must travel to receive photo identification).
[19] See Crawford, 553 U.S. at 199.
[22] See Brakebill v. Jaeger, No. 18A335 (U.S. Oct. 9, 2018) (holding North Dakota’s last-minute alteration to its voter ID requirements was lawful despite its disproportionate effect on Native Americans, demonstrating the Supreme Court’s tendency to scale back voting rights).